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An ex post facto law (from the Latin for "after the fact") or
retroactive law, is a law that
retroactively changes the legal consequences of acts committed or
the legal status of facts and relationships that existed prior to
the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when
committed; or it may aggravate a crime by
bringing it into a more severe category than it was in at the time
it was committed; or it may change or increase the punishment
prescribed for a crime, such as by adding new penalties or
extending terms; or it may alter the rules of evidence in order to make
conviction for a crime more likely than it would have been at the
time of the action for which a defendant is prosecuted. Conversely,
a form of ex post facto law commonly known as an amnesty law may decriminalize
certain acts or alleviate possible punishments (for example by
replacing the death sentence with life-long imprisonment)
retroactively.

A law may have an ex post facto effect without being
technically ex post facto. For example, when a law repeals a
previous law, the repealed legislation no longer applies to the
situations it once did, even if such situations arose before the
law was repealed. The principle of prohibiting the continued
application of these kinds of laws is also known as Nullum
crimen, nulla poena sine praevia lege poenali,
particularly in European continental systems.

Ex post facto laws by country

Australia

Australia has no strong constitutional
prohibition on ex post facto laws, although narrowly
retroactive laws might violate the constitutional separation of powers principle.
Australian courts normally interpret statutes with a strong
presumption that they do not apply retroactively.

Brazil

The same article, in section XL prohibits ex post facto criminal
laws. Like France, there is an exception, when retroactive criminal
laws benefits the accused person.

Canada

In
Canada, ex post facto criminal laws are
constitutionally prohibited by
section 11 of the Charter of Rights and
Freedoms. Also, under section 11(i) of the Charter, if
the punishment for a crime has varied between the time the crime
was committed and the time of a conviction, the convicted person is
entitled to the lesser punishment.

Finland

Finland used ex
post facto legislation in 1945, after the World War Two in
trials of the war responsibilities in Finland. A law which
made the pre-war politics criminal was passed in order to get the
leaders nominated by Stalin sentenced. Generally ex post facto
jurisprudence is considered violating the Romano-German judicial
system, and are banned by the Constitution of Finland. Still, ex
post facto laws may be used in civil cases, especially concerning
vehicle taxes.

France

The expression "Ex post facto law" translates to "loi rétroactive"
in French. In France, any ex
post facto criminal law may be applied only if the retroactive
application benefits the accused person (called retroactivity
"in mitius"). An example of this
rule would be a case where a weaker sentence is now applicable but
was not previously applicable. See also the Declaration
of the Rights of Man and of the Citizen.

Germany

Article
103 of the German basic
law requires that an act may only be punished if it has already
been punishable by law at the time it was committed (specifically:
by written law, Germany following
civil law).

India

In India without using the expression "Ex post facto law" the
underlying principle has been adopted in the Article 20 (1) of the
Indian Constitution in the following words:

"No person shall be convicted of any offence except for violation
of a law in force at the time of the commission of the act charged
as an offence, nor be subjected to a penalty greater than that
which have been inflicted under the law in force at the time of
commission of the offence."

Indonesia

Article
28I of the Indonesian constitution prohibits trying citizens under
retroactive laws in any circumstance.This was tested in
2004 when the conviction of one of the Bali
bombers under retroactive anti-terrorist legislation was
quashed.

Iran

Italy

Article 25, paragraph 2, of the Italian Constitution establishing that
"nobody can be punished but according to a law come into force
before the deed was committed", prohibits indictment pursuant a
retroactive law. Article 11 of preliminary provisions to the
Italian Civil Code and Article 3, paragraph 1, of the
Statute of taxpayer's rights prohibit retroactive laws on
principle. Such provisions can be derogated, however, by
acts having force of the ordinary law.

Ireland

The
imposition of retroactive criminal sanctions is prohibited by
Article 15.5.1° of the constitution of Ireland. Retroactive changes of the civil law have
also been found to violate the constitution when they would have
resulted in the loss in a right to damages before the courts, the
Irish Supreme Court having
found that such a right is a constitutionally protected property
right.

Japan

Article
39 of the constitution of
Japan prohibits the retroactive application of
laws. Article 6 of Criminal Code of Japan further state
that if a new law comes into force after the deed was committed,
the lighter punishment must be given.

New Zealand

Section 7 of the Interpretation Act 1999 stipulates that enactments
do not have retrospective effect. The New Zealand Bill of Rights
Act 1990 also affirms New Zealand's commitment to the ICCPR and
UNDHR with s 26 preventing the application of retroactive
penalties. This is further reinforced under s 6(1) of the current
Sentencing Act 2002 which provides, "[p]enal enactments not to have
retrospective effect to disadvantage of offender" irrespective of
any provision to the contrary. Section 26 of the Bill of Rights and
the previous sentencing legislation the Criminal Justice Act 1985
caused significant digression among judges when the New Zealand
Parliament introduced legislation that had the effect of enacting a
retrospective penalty for crimes involving an element of home
invasion. Ultimately the discrepancy was restricted with what some
labelled artificial logic in the cases of R v Pora and R v
Poumako.

Norway

Article
97 of the Norwegian constitution prohibits any law to be given
retroactive effect.

Pakistan

Article 12 of the constitution of Pakistan prohibits any law to be
given retroactive effect by stating:

12.1 - No law shall authorize the punishment of a person:-

12.1.a - for an act or omission that was not punishable by law
at the time of the act or omission; or

12.1.b - for an offence by a penalty greater than, or of a kind
different from, the penalty prescribed by law for that offence at
the time the offence was committed.

Russia

Ex post facto punishment in criminal and administrative
law is prohibited by art.54 of Constitution; Ex post facto
tax laws by art.57 of Constitution.

Spain

Article 9.3 of the Spanish
Constitution guarantees the principle of non-retroactivity of
punitive provisions that are not favorable to or restrictive of
individual rights. Therefore, "ex post facto" criminal laws or any
other retroactive punitive provisions are constitutionally
prohibited.

Sweden

In
Sweden, retroactive
penal sanctions and other retroactive legal effects of criminal
acts due the State are prohibited by chapter 2, section 10 of the
Instrument of
Government (Regeringsformen). Retroactive taxes
or charges are not prohibited, but they can have retroactive effect
reaching back only to the time when a new tax bill was proposed by
the government. The retroactive effect of a tax or charge thus
reaches from that time until the bill is passed by the
parliament.

The Swedish Parliament voted in 2004 to abolish inheritance tax by January 1, 2005. However,
in 2005 they retro-actively decided to move the date to December
17, 2004. The main reason was abolishing inheritance
tax for the many Swedish victims of the 2004 Indian
Ocean earthquake, which took place on December 26.

Turkey

United Kingdom

In the
United
Kingdom, ex post facto laws are strictly frowned
upon, but are permitted by virtue of the doctrine of parliamentary sovereignty.
Historically, all acts of Parliament before 1793 were ex post
facto legislation, inasmuch as their date of effect was the
first day of the session in which they were passed. This situation
was rectified by the Acts of Parliament
Act 1793.

Ex post facto criminal laws are prohibited by Article 7 of
the European
Convention on Human Rights, to which the United Kingdom is a
signatory, but parliamentary sovereignty, in theory, takes priority
even over this.

United States

In the
United
States, the federal government is prohibited from passing
ex post facto laws by Article I,
section 9 of the U.S.Constitution and the states are
prohibited from the same by clause 1 of
section 10. This is one of the very few restrictions that the
United States Constitution made to both the power of the federal
and state governments prior to amendment. Over the years, when
deciding ex post facto cases, the United
States Supreme Court has referred repeatedly to its ruling in the
Calder v.Bull, 3 U.S. 386 (1798), in which Justice
Chase established four categories of
unconstitutional ex post facto laws. The case dealt with
Article I, section 10, since it dealt with a Connecticut state
law.

However, not all laws with ex post facto effects have been
found to be unconstitutional. One current U.S. law that has an
ex post facto effect is the Adam Walsh Child
Protection and Safety Act of 2006. This law, which imposes new
registration requirements on convicted sex
offenders, gives the United States Attorney
General the authority to apply the law retroactively.
The
U.S.Supreme Court ruled in Smith
v.Doe (2003)
that forcing sex offenders to register their whereabouts at regular
intervals and the posting of personal information about them on the
Internet does not violate the constitutional prohibition against
ex post facto laws, because compulsory registration of
offenders who completed their sentences before new laws requiring
compliance went into effect does not constitute any kind of
punishment.

Another example is the so-called Domestic Violence Offender
Gun Ban, where firearms prohibitions were imposed on those
convicted of misdemeanor domestic violence offenses and subjects of
restraining orders (which do not require a criminal conviction).
These individuals can now be sentenced to up to 10 years in a
federal prison for possession of a
firearm, regardless of whether or not the weapon was legally
possessed at the time the law was passed. Among those that it is
claimed the law has affected is a father who was convicted of a
misdemeanor of child abuse despite
claims that he had only spanked his child,
since anyone convicted of child abuse now faces a lifetime firearms
prohibition. The law has been legally upheld because it is
considered regulatory, not punitive—it is a status offense.

Finally, Calder v.Bull expressly stated that a law that
"mollifies" a criminal act was merely retrospective and not an
ex post facto law.

A large "exception" to the ex post facto prohibition can be found
in administrative
law, as federal agencies may apply their rules retroactively if
Congress has authorized them to do so. Retroactive application is
disfavored by the courts for a number of reasons, but Congress may
grant agencies this authority through express statutory provision.
Furthermore, when an agency engages in adjudication, it may apply its own policy goals
and interpretation of statutes retroactively, even if it has not
formally promulgated a rule on a
subject.

In the 1994 opinion United
States v.Carlton, the
U.S. Supreme Court unanimously held that retroactive tax laws did
not violate the constitutional prohibition on ex post facto
legislation, provided their retroactive application was "supported
by a legitimate legislative purpose furthered by rational
means".

Treatment by international organizations and treaties

Universal Declaration of Human Rights and related treaties

Article 11, paragraph 2 of the Universal Declaration of
Human Rights provides that no person be held guilty of any
criminal law that did not exist at the time of offence nor suffer
any penalty heavier than what existed at the time of offence. It
does however permit application of either domestic or international
law.

Very similar provisions are found in Article 15, paragraph 1 of the
International
Covenant on Civil and Political Rights, replacing the term
"penal offence" with "criminal offence". It also adds that if a
lighter penalty is provided for after the offence occurs, that
lighter penalty shall apply retroactively. Paragraph 2 adds a
provision that paragraph 1 does not prevent trying and punishing
for an act that was criminal under according to the general
principles of law recognized by the community of nations.
Specifically addressing the use of the death penalty, article 6,
paragraph 2 provides in relevant part that a death sentence may
only be imposed "...for the most serious crimes in accordance with
the law in force at the time of the commission of the
crime...."

African Charter on Human and Peoples' Rights

Article 2, paragraph 7 of the African Charter on
Human and Peoples' Rights provides in part that "[n]o one may
be condemned for an act or omission which did not constitute a
legally punishable offence at the time it was committed. No penalty
may be inflicted for an offence for which no provision was made at
the time it was committed."

American Declaration of the Rights and Duties of Man

Article 25 of the American
Declaration of the Rights and Duties of Man provides in part
that "[n]o person may be deprived of his liberty except in the
cases and according to the procedures established by pre-existing
law." The right to be tried in accordance to "pre-existing law" is
reiterated in article 26.

Arab Charter on Human Rights

Article 15 of the Arab
Charter on Human Rights provides that "[n]o crime and no
penalty can be established without a prior provision of the law. In
all circumstances, the law most favorable to the defendant shall be
applied."

European Convention on Human Rights

Most European states, and all European
Union states, are bound by the European Convention on Human
Rights. Article 7 of the convention mirrors the language of
both paragraphs of Article 15 of the International Covenant on
Political and Civil Rights, with the exception that it does not
include that a subsequent lighter penalty must apply.

Quotations

"The sentiment that ex post facto laws are against natural
right is so strong in the United States, that few, if any, of the
State constitutions have failed to proscribe them. The federal
constitution indeed interdicts them in criminal cases only; but
they are equally unjust in civil as in criminal cases, and the
omission of a caution which would have been right, does not justify
the doing what is wrong. Nor ought it to be presumed that the
legislature meant to use a phrase in an unjustifiable sense, if by
rules of construction it can be ever strained to what is just."
(Thomas Jefferson, Letter to Isaac
McPherson, August 13, 1813)

Grammatical form and usage

The phrase isn't grammatically correct in Latin, as it consists of
the prepositionex, the
preposition post, and a noun with the
wrong grammatical case to agree
with post. Indeed, the Latin for this phrase is actually
two words, ex postfacto, literally, out of a
postfactum (an after-deed), or more naturally, from a law
passed afterward.

Therefore, ex post facto or ex postfacto is
natively an adverbial phrase, a usage demonstrated by the sentence
"He was convicted ex post facto (i.e., from a
law passed after his crime)." The law itself would rightfully
be a postfactum law (lex postfacta);
nevertheless, despite its redundant or circular nature, the phrase
an ex post facto law is used.

In Poland the phrase lex
retro non agit ("the law does not operate retroactively")
is often used.

See also

Nulla poena sine lege -
the principle that no one may be punished for an act which is not
against the law.